Should Prosecutors Hire Jury Consultants?

I don't do criminal law, never have. But stuff like this makes me feel like an innocent, a babe in the woods.

Vanessa Blum's article in the Sun-Sentinel, Liberty City Six: No verdict yet in the Liberty City Six terror trial, and the government has spent millions, reports that the government has just spent a fortune on three trials of what from here seem to be a relatively harmless bunch of garden-variety hoodlums whom an agent provocateur raised up into mock terrorist wannabes. But that's not the shocking part, no, that is the sort of ordinary outrage one gradually builds up calluses for.

What's amazing, at least to this innocent, is this:

Among the payments by federal prosecutors is $95,755.79 to Varinsky Associates, a California-based jury consulting firm.

Jury consultants are people who advise lawyers on what sort of jurors to pick in order to increase their chances of a favorable verdict; they may also give advice, based on focus groups or polling, on what sort of arguments are likely to work or to fail.

Jury consultant services utilize sociological and psychological research. [FN250] These services include both qualitative and quantitative jury research. [FN251] Qualitative jury research uses a limited number of surrogate jurors (typically, up to fifty) drawn from the relevant community. The research identifies these jurors' reactions to evidence and arguments that can be presented in the future trial. After hearing the evidence and the arguments, the surrogate jurors will be divided into subgroups that will separately deliberate the verdict. This methodology singles out the most effective arguments and evidence along with the jurors' profiling trends. [FN252] The jurors' profiling trends are the sets of attitudes, experiences and beliefs that are favorable or, inversely, inimical to the client's case. [FN253] Quantitative research focuses on a large pool of surrogate jurors (about 400), who respond to carefully designed questionnaires (“community attitude surveys”). [FN254] These responses identify attitudes, experiences and beliefs favorable and unfavorable to the client's case. [FN255] This research strategy aims at developing dependable juror profiles. [FN256] It also identifies the “hot questions” that facilitate the jurors' selection and de-selection during voir dire. [FN257]

— Uzi Segal & Alex Stein, Ambiguity Aversion And The Criminal Process, 81 Notre Dame L. Rev. 1495, 1548 (2006)

I repeat that this isn't the sort of law I work on, and I look forward to correction by readers who live in the criminal justice trenches. But from over here on the civil side, I still think that jurors, and especially criminal juries, are ideally supposed to represent the community. (And yes, I'm aware that the reality departs from the ideal in multiple dimensions.) If the US Attorney's office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I've found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn't raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender's office got jury consultants too? If they do, couldn't they make a non-aggression pact on the jury consultants and save us all some money?

(I'm reminded of the old joke about the judge who calls the plaintiff's lawyer in a civil case into his chambers and says, “Fred, I wanted you to know that defense counsel have offered me $5,000 to rule in their favor. So how about you give me $5,000 too and we try this one on the merits?”)

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8 Responses to Should Prosecutors Hire Jury Consultants?

  1. Michael says:

    My uninformed opinion is that regardless of the consitutional issues, the use of jury consultants raises a professional ethics problem for the prosecutors. Their interest is not to win the case but to see justice be done. The line between using consultants in the interests of justice rather than in the interests of convictions is sufficiently hazy that prosecutors should stay away from it.

    I’d also wonder whether the use of consultants for advice on arguments changes what should be considered unduly prejudicial, the concern being that something that appears innocuous to the judge, and the vast majority of the populace, may be inflamatory to some targeted subset of the jury.

  2. yeah_right says:

    Hypo: Assume Bush on trial for torture. Jury consultant hired. Your opinion is the same?

  3. michael says:

    Absolutely. I’d want him to have one of the fairest trials in history.

  4. Legal Eagle says:

    Prof. Froomkin,

    This is the commentor from David’s blog that addressed the issue you raised and to whom you responded to. Let me start by saying that I believe that prosecutors should view facts objectively, not believe everything law enforcement officers tell them, and—where there is any doubt—err on the side of disclosure for purposes of compliance with Brady, Giglio etc. (i.e., they should be risk-averse when it comes to their disclosure obligations under Brady, Giglio et al.). However, I do believe that prosecutors are advocates and they are not appendages of the district or appellate courts—they should be allowed to make novel arguments, pursue novel charging theories, etc. With that in mind . . .

    First, your argument appears to imply that “show cause” is a fairly easy standard to administer that is consistently applied in any given case. Any trial lawyer will tell you that, like beauty, “show cause” is in the eyes of the beholder (in this case, they eyes of the judge). What constitutes “show cause” in Judge X’s courtroom might be insufficient in Judge Y’s courtroom. Second, your argument suggests that peremptory challenges are incongruous with “doing justice” or inherently nefarious. (BTW—I prefer “fair trial” which is more firmly rooted/defined in articulable legal principles/standards because “doing justice” is a phrase that notoriously begs the question). I do not believe that this is necessarily the case.

    For example, you might have a drug case where a prospective juror states that even though his brother—who he visits regularly—is serving 15 years in prison for PWID cocaine, he can objectively apply the facts to the law. In light of this answer, the judge does not allow a for-cause challenge (this happens quite often) and the prosecutor exercises a peremptory. The exercise of that peremptory is not based on any impermissible ground (i.e., race, gender etc.) Rather, one might say that it is based on the common-sense determination that, notwithstanding his/her words, this juror might not be as objective as he/she stated even though he/she genuinely believes otherwise.
    Much of trial practice—good or bad—is based on these types of common sense and on the spot “gut” decisions. That might make some uncomfortable or make it difficult to pin down or predict the application of certain concepts, but that is just the reality. The existence of peremptory challenges appears predicated, at least in part, on the reality that there is a territory not covered by for-cause challenges that nevertheless undermines and threatens the attainment of a “fair and representative” jury panel (to the extent that is possible within the limits of human nature and experience). If peremptory challenges are exercised improperly, we have Batson principles to serve as a backstop against such behavior. Do you believe that Batson is insufficient as applied to the government? If so, why?

    Also, if you believe that peremptory challenges can be used in a “scheming” fashion to undermine a “fair and representative” jury, why would you allow the defense to use them but not the government? Merely allowing their use by the defense because you “accept that defense lawyers can and sometimes should do things we don’t allow the prosecution to do . . . [because it] balances out the state’s much greater power and (usually) resources” is not only a cop-out but strikes me as intellectually dishonest. The analysis should not focus on the party that uses them, but on how their use affects the administration of the trial/judicial system. Nor should reliance on “zealous” advocacy excuse their use.

    You also state: “More generally, other than a desire to win, why should we accept the prosecution can scheme to get a pro-prosecution jury as opposed to one that is fair and representative of the community?“

    Do you view a “desire to win” as a bad thing? I would reject the concept that a “desire to win” is somehow a dirty little thing when it comes to prosecutors. A desire to win in a way that assumes compliance with constitutional principles, the rules of evidence and other applicable standards is not a bad thing—prosecutors are not automatons.

    Also, what exactly is a “pro-prosecution” jury? When exactly is a jury “fair and representative of the community?” You posit these concepts in a hermitically sealed fashion when I submit they are not. For example, a juror’s belief on a particular issue might connote/imply beliefs on other issues that make it difficult to label him/her as “pro-government” or “pro-defense.” In other words, a juror might abide by a set of principles that lead to both “conservative” and “liberal” outcomes/opinions. In a gun and drug case, you might have an avid hunter as a prospective juror. He might be against gun control (a position usually labeled as “conservative”), he might believe that once an individual has served time for his offense he has paid his dues and should be allowed to possess certain types of firearms, he might be a libertarian (which suggests that he might be for the legalization of certain narcotics etc., a “liberal” position), and he might be pro-environment (because he doesn’t want his hunting grounds spoiled). In short, jurors are not easily labeled as pro government or pro defense and they might hold beliefs that in a particular case, cut for and against your client.

    Also, I do not believe that you have addressed my argument that jury consultants are effective ONLY IF the judge gives you enough time to voir dire and that most federal judges do not give you enough time to make the kind of judgments that are at the core of your critique.

  5. michael says:

    Thank you for your reply to my comments at SDFLA.

    Yes, judges vary. But that’s going to be as true for motions during trial as it is for voir dire.

    Let’s take your first example.

    For example, you might have a drug case where a prospective juror states that even though his brother—who he visits regularly—is serving 15 years in prison for PWID cocaine, he can objectively apply the facts to the law. In light of this answer, the judge does not allow a for-cause challenge (this happens quite often) and the prosecutor exercises a peremptory. The exercise of that peremptory is not based on any impermissible ground (i.e., race, gender etc.) Rather, one might say that it is based on the common-sense determination that, notwithstanding his/her words, this juror might not be as objective as he/she stated even though he/she genuinely believes otherwise.

    The incarceration rate for blacks is much higher than for whites, and even more so for drug crime. So this is far from a neutral example — indeed, it seems to make the case against peremptory challenges, if there’s a chance they are going to be used in a manner with substantially racially disparate impacts.

    But, you say,

    The exercise of that peremptory is not based on any impermissible ground (i.e., race, gender etc.) Rather, one might say that it is based on the common-sense determination that, notwithstanding his/her words, this juror might not be as objective as he/she stated even though he/she genuinely believes otherwise.

    No disrespect to the prosecutor, but I’m really OK with leaving that determination to a judge. I don’t say it *has* to be the judge’s sole provenance, but why isn’t that the default which any competing view must overcome? Why privilege the rather odd status quo?

    The existence of peremptory challenges appears predicated, at least in part, on the reality that there is a territory not covered by for-cause challenges that nevertheless undermines and threatens the attainment of a “fair and representative” jury panel (to the extent that is possible within the limits of human nature and experience).

    I am not well-versed in the subject, but there’s nothing intuitively obvious to me about that claim. I’d want some evidence before endorsing it. Abstractly, I would have thought the odds of achieving this goal were greater without the peremptory challenge.

    I think prosecutors do need a ‘desire to win’ but that it must be tempered in some ways that do not apply to criminal defense lawyers. [For the avoidance of doubt, I note that there are some ways in which both sides’ ‘desire to win’ needs to be tempered, e.g. bans putting on knowingly perjured testimony.]

    What is a ‘pro-prosecution jury”? One that is attitudinally more likely to find for the prosecution than a truly random jury. How do we tell if we have one? Very very hard, I admit, since we don’t usually have a good baseline. Are there many other beliefs/characteristics of jurors that don’t map on that simplistic metric? Of course they are. But what do they have to do with peremptory challenges?

    As for your last point, I don’t know enough to have a firm opinion — remember, I don’t do criminal trial work! I do know that some judges use questionnaires that might give a consultant enough fodder to work with. If your point is that there are (many?) judges out there that don’t give either side enough leeway to quiz the jury to the point where jury consultants can make meaningful suggestions, I have no reason to doubt you — but I will say, “Good for them!” as I think that’s probably what judges usually should do.

  6. Legal Eagle says:

    Prof. Froomkin,

    I believe there is a Supreme Court case where J. Powell wrote an opinion pre-Batson that has a decent articulation of peremptories.

    Swain v. Alabama, 380 U.S. 202 (1965), overruled on other grounds:

    The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. Hayes v. State of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578. It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ Lewis, supra, 146 U.S., at 376, 13 S.Ct., at 138, upon a juror’s ‘habits and associations,’ Hayes v. State of Missouri, supra, 120 U.S., at 70, 7 S.Ct., at 351, or upon the feeling that ‘the bare questioning (a juror’s) indifference may sometimes provoke a resentment,’ Lewis, supra, 146 U.S., at 376, 13 S.Ct., at 138.

    Also:

    See, e.g., J.E.B., 511 U.S., at 137, n. 8, 114 S.Ct. 1419 (purpose of peremptory challenges “ ‘is to permit litigants to assist the government in the selection of an impartial trier of fact’ ”) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)); Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (peremptory challenges are “one state-created means to the constitutional end of an impartial jury and a fair trial”); Frazier v. United States, 335 U.S. 497, 505, 69 S.Ct. 201, 93 L.Ed. 187 (1948) (“the right [to peremptory challenges] is given in aid of the party’s interest to secure a fair and impartial jury”).

  7. michael says:

    To the extent that the quotes refer to normative rather than positive aspects of the peremptory challenges, I submit to you that with one possible exception, they all justify peremptory challenges for the criminal defense, but not for the the prosecutor.

    1. ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ — totally inappropriate for a government officer to give way to these.

    2. upon a juror’s ‘habits and associations’ – even more inappropriate for the government given the First Amendment freedom to associate

    3. or upon the feeling that ‘the bare questioning (a juror’s) indifference may sometimes provoke a resentment,’ – probably the best case for the prosecutor (“I think that juror hates me now”) but not a very good one in that proper behavior and/or challenges for cause, should cover most of the cases that this would apply to.

    4. purpose of peremptory challenges “ ‘is to permit litigants to assist the government in the selection of an impartial trier of fact’” – by its own terms this refers to something the private party does to assist the government, not something the government (prosecutor) does to assist itself.

    5. peremptory challenges are “one state-created means to the constitutional end of an impartial jury and a fair trial” Descriptive.

    6. “the right [to peremptory challenges] is given in aid of the party’s interest to secure a fair and impartial jury” descriptive, and to the extent it is normative, I think the government’s interest in a fair and impartial jury can be entrusted to the judge’s rulings on challenges for cause. (And if the judge can’t be trusted on this, don’t we have much bigger problems?)

  8. John Dudley says:

    I am in favor of jury consultants. For a long time I have stressed the point that individuals who do not have any knowledge of law or the court system should be deciding someone’s fate. With a law background and now media reporting in court with many cases; high profile and common, I see how some of these juries are inept. I have actually witnessed how a judge had to spell out common words to one jury because most of the members did not have any knowledge of a word or its meaning. I ask, is this someone that you want deciding your fate? Yes-the court system should hire jury consultants. Professional people working with other constituents similar to their field. This means that the jury does not have to be highly polished; it simply means that these individuals should have some type of legal background or similar knowledge when someone’s fate is involved which in effect will leave a lasting impact on their lives.

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